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Research Linking Cell Phones, Brain Cancer
Gets Court Hearing
At first, he had trouble walking. Then, while working out one morning in 1997, Jarrettsville physician Christopher J. Newman suddenly lost sight in one eye. A year later, he was told he had a malignant brain tumor and began questioning whether the cellular phone he had depended on for much of the 1990s was to blame.
Newman was not the first to raise the issue. But after years of conflicting research and lawsuits that went nowhere, it is his $800 million case against the wireless industry that is providing the first detailed public probe of the persistent question of whether cell phones cause cancer.
During a five-day hearing last week in Baltimore's federal courthouse, attorneys for Newman sought to persuade U.S. District Judge Catherine C. Blake of the legitimacy of research that could link one of the country's most popular consumer items to brain cancer. Industry lawyers countered with a lineup of crisp, well-credentialed experts who dismissed the studies as flawed.
"If cell phone use were a real carcinogen, you'd be seeing it show up in other studies, like other carcinogens," said Thomas C. Watson, a Washington attorney who led a team of about a dozen lawyers for the wireless industry last week.
The players in the case are big - Newman is represented by the law firm of Peter G. Angelos, who earned his fortune in watershed cases against the asbestos and tobacco industries - and the stakes are high for the $45 billion-a-year wireless phone industry.
Cell phone manufacturers have won all of the handful of lawsuits filed against them over the past decade. But none of the earlier cases reached the stage Newman's is at now: where a judge must decide what scientific evidence, if any, should be admitted if the case goes to trial.
The mobile phone industry has a strong hand. A tentative consensus has emerged among scientists and federal regulators that cell phones are safe, although many researchers have called for more studies. One of the industry's witnesses last week was a researcher for the American Cancer Society who flatly rejected the idea that the radiation emitted by cell phones can lead to brain cancer.
"There is no association, given the way cell phones have been used to date and given the way they were used by Dr. Newman," said Eugenia Calle, director of analytic epidemiology for the cancer society, who reviewed published studies and scientific panel reports at the request of industry lawyers.
The Angelos team, which included his son, John C.M. Angelos, and a longtime deputy, John A. Pica Jr., built its case last week around research showing DNA damage in lab rats exposed to concentrated doses of radiation and a Swedish researcher's unpublished findings that tumors in brain cancer patients were more likely to be found on the side of the head where a wireless phone was used.
The two researchers, as well as other witnesses for Newman, acknowledge that their view that cell phone radiation can lead to cancer is not widely held. But they insist that it is only a matter of time before other studies reach the same conclusions, putting cell phones in the same category as faulty truck tires or tobacco.
Plaintiff witness Jerry L. Phillips, a biochemist from Colorado, was pressed last week by an industry lawyer to acknowledge he could not pinpoint what level of cell phone exposure would lead to health problems. He shot back: "No more than I know how many cigarettes it takes to produce lung cancer."
Exploring potential health risks and proving a direct connection in court, though, are two very different things. A 1993 Supreme Court decision requires trial judges to serve as critical gatekeepers in determining what scientific testimony is admitted at trial. Under so-called Daubert guidelines, named for the 1993 case, judges must scrutinize whether scientific evidence and expert testimony are generally accepted by a scientific community and are considered reliable and relevant.
The strict standards apply not only to questions about new science and technology. A federal judge in Philadelphia this year limited how fingerprint evidence, one of the oldest forensic techniques, could be used in a pending drug conspiracy case.
Newman's case against industry giant Motorola Inc. and wireless carrier Cellular One turns entirely on the questions surrounding the scientific evidence. A ruling that sharply restricts what science his attorneys can present at trial could effectively end the case and would likely affect future litigation.
Similar cases are pending across the country; a new batch of lawsuits was filed last week in Washington by lawyer Joanne L. Suder, who has worked closely with Angelos. Additionally, Angelos has brought a group of class-action lawsuits against the wireless industry that would force cell phone manufacturers to provide headsets to mobile phone users as a way to protect against alleged health risks.
Blake, a Clinton appointee who has served on the District Court bench in Baltimore since 1995, is presiding over the class-action headset lawsuits as well, and last week's hearing is expected to also inform her decisions in those cases.
The judge gave no indication last week of when she would rule, but she acknowledged the attention surrounding the case - calling the underlying issues at one point a "very important public interest question," and refusing to close the courtroom or keep the unpublished study that Newman's lawyers introduced under a confidential seal.
At issue in each of the cell phone cases is the question of whether the electromagnetic radiation cell phones give off through their antennas poses significant health risks. The health questions have stemmed from the fact that most users hold the phones to their ears, putting the transmitters within inches of their heads.
Newman, who is 42 and has undergone five surgeries for his brain tumor, has said he had no idea that the safety of cell phones was in question when he got his first one in 1992. Court testimony last week showed Newman used three different cell phones - two hand-held models and one phone that was mounted in his car - for a total of 343 hours over roughly five years.
Lennart Hardell, the Swedish oncologist whose research was at the center of Newman's case, testified last week that in his opinion, "Dr. Newman's brain tumor was caused by his use of an analogue cellular phone." Hardell also noted his findings that brain tumor patients were at greater risk of having a tumor on the side of the head where they typically held a mobile phone - in Newman's case, the right side of his head.
Blake indicated at the hearing's close Friday that her decision could rest on Hardell's reliability. His study is unpublished and was rejected late last year by the British medical journal The Lancet. Journal editors, in letters made part of the court record last week, cited significant statistical problems and an overall message that "was written much too forcefully."
Hardell was not the only witness for Newman who came under scrutiny for advocating too strongly for the notion that cell phones could cause brain cancer. A New Zealand physicist, Neil J. Cherry, acknowledged in court that he had sent e-mails last year to Pica that talked about a three- to 10-year strategy of bringing class-action lawsuits through Angelos' firm on behalf of brain cancer patients who had used cell phones.
"We can make your firm the most famous in the world," Cherry wrote in an e-mail note last spring.
Industry attorneys pointed out that the incidence of brain cancer in the United States - about eight new cases a year per 100,000 people - has not increased in the past 10 years, even as cell phones have come into heavy use, with some 100 million Americans now using the sleek little gadgets.
And they rested on the credibility of a series of witnesses that included a research evaluator from Harvard, the cancer society's Calle and two prominent brain cancer researchers - John Laterra, who heads a brain tumor research center at the Johns Hopkins University, and Mark A. Israel, director of the Comprehensive Cancer Center at Dartmouth College.
Each of the industry's witnesses said the studies showing a possible link between cell phone radiation and brain cancer were flawed. Israel was also asked directly why he was not conducting his own research on the issue at Dartmouth.
"Everything in research is limited," Israel responded. "One has to prioritize and identify areas of research that will be fruitful. I've seen nothing in my review ... that suggests this is an area of research that would be fruitful."
Newman briefly attended the first and last day of last week's hearings, though he declined to comment on the case.
The courtroom was packed throughout the week, mostly with industry attorneys and plaintiff lawyers who scribbled notes throughout the hearing, and during breaks darted to the courthouse hallways to call in reports on their wireless phones.